The Second Five: Creating American Law

I’m still chewing over Professor Robert Blomquist’s fascinating paper, Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law. Approaching his Moments 6 through 10, I begin to have more bones to pick with the rankings.
6. Marbury v. Madison: No argument here. Chief Justice John Marshall’s classic passive/aggressive decision stands the test of time. By declining to decide the case before him, but asserting the right to do so in the future, Marshall walked the political and legal tightrope of the time, asserting ultimate judicial power in such a fashion that President Jefferson could not do anything about it.
Chief Justice John Marshall
7. Lincoln’s Emancipation Proclamation: Absolutely. Lincoln’s effort was a brilliant war effort, recentering the battles of the Civil War onto unassailable moral ground, but also was the work of a legal craftsman. He freed the slaves only in the states in rebellion, where he he could exercise his war powers, and not in those states NOT in rebellion.
8. The Judiciary Act of 1789: I don’t know. This is getting a bit “inside.” My law school professor in “Federal Jurisdiction” carried on a great length over the brilliance of this effort, but I have to confess he did not get the point across very well to me. Blomquist espouses its importance for (i) organizing the federal judiciary in a way that would make judicial review possible, and (ii) creating the office of attorney general. Color me unpersuaded. Wouldn’t they have to do those anyway? And I think most early American lawyers thought judicial review was the right way to organize the courts, with many state supreme courts exercising that power under state laws.
9. Lincoln’s Suspension of Habeas Corpus During the Civil War: I like this choice because it makes us supposed civil libertarians squirm a bit. How great was this? I’m not positive a case can be made that it meant the difference between defeat and victory in the war, but there were plenty of Confederate sympathizers in the Border States (and above), so I can see the political need for it. And it was definitely creative, since the Constitution allows the suspension of habeas corpus but only by Congress, not by the president. He also argued that — in the emergency of civil war — the president’s war power had to trump the right of habeas corpus. Go ahead and squirm, but it was a tough issue, he took it on, and probably got it right.
10. Brown v. Board of Education: No argument about the landmark school desegregation case. It was a key step in the resuscitation of the Fourteenth Amendment and helped remake American society. It might even be ranked higher.
But, to borrow from Conan Doyle’s Hound of the Baskervilles,, there are couple of prominent “dogs that didn’t bark” on this part of the list. Professor Blomquist has listed at Creative Moment #30 “The post-Civil War Constitutional Amendments (13th, 14th and 15th).” Sorry, professor. Huge mistake. These are Top Ten. For heaven’s sake, he’s got them behind the GI Bill and Dean Langdell’s introduction of the case method of study in 1871!
And nowhere on his list — nowhere in top 100 creative moments! — appear either (i) the Alien and Sedition Acts of 1798, or (ii) the Kentucky and Virginia Resolutions of Jefferson and Madison, which were adopted in response to those benighted statutes. What was he thinking? The Alien and Sedition Acts were hateful, but important and “creative.” And the Kentucky and Virginia Resolutions asserted the state nullification theory (that states could reject federal law) that bedevilled the nation for decades and laid the intellectual groundwork for the Civil War.


  1. Mateo on May 28, 2008 at 10:29 pm

    I love lists like this – they’re designed to be fought over. And with a defining protocol like “creative,” everybody’s right.

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